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High Court of Solomon Islands |
HIGH COURT OF SOLOMON ISLANDS
Civil Case No. 83 of 1998
KOLOLEANA DEVELOPMENT COMPANY LIMITED
& MEGA CORPORATION LIMITED
–V-
OLUPATU AMIKI AND OTHERS
High Court of Solomon Islands
(Palmer J.)
Hearing: 19th September 2002, 20th, 23rd – 25th September 2002
Judgment: 7th March 2003
Crystal Lawyers for the first Plaintiff
Pacific Lawyers for the second Plaintiff
A & A Legal Service for the Defendants
Palmer J.: The first and second Plaintiffs (hereinafter referred to as “the Plaintiffs”) filed Writ of Summons specially endorsed and Statement of Claim on 13th May 1998. The Plaintiffs claim in essence is for the return of several items of equipment which had been stolen from their log camp site at Ghalughalu, West Kohinggo being, one ICOM 700 radio, one stihl chainsaw 070, one battery charger, one 150 N battery and two electrical cables (hereinafter referred to as “the Goods”). In the alternative they seek damages to the value of those equipment being $21,000-00. The Plaintiffs also initially sought orders for a permanent injunction against the first to the eleventh Defendants (hereinafter referred to as “the Defendants”) from entering their log camp at Ghalughalu and from harassing and interfering with the logging activities of the Plaintiffs, their servants and agents, but this has now been abandoned as the Plaintiffs had ceased logging operations and abandoned the site.
It appears from the evidence before this court that the equipments of the Plaintiffs, which had been removed, have not been returned and their whereabouts unknown. The only claim of the Plaintiffs that is relevant therefore is the claim for damages for the loss of the said equipments.
The Licence of the Plaintiffs
The first Plaintiff relies on the felling licence number TIM 2/34 (hereinafter referred to as “the Timber Licence”) issued on 23rd August 1993. The said licence initially authorized the felling, removal and export of logs from a different concession area on Kolombangara Island (more specifically identified as Blocks “D” and “E” on Kolombangara Island). A copy of that timber licence is exhibited as Exhibit “MB1” annexed to the affidavit of Marvin Baekisapa filed 13th May 1998. The said licence makes reference to the concession areas as “Blocks D and E”.
The second Plaintiff is the logging operator engaged by the first Plaintiff under a technology and management agreement dated 27th April 1994 to perform the actual logging operations on the said land, including any other concession areas which may later be acquired by the first Plaintiff (see Exhibit “MB2”).
On 13th September 1996, a standard logging agreement (hereinafter referred to as “the Agreement”) was signed between the first Plaintiff and the landowners of West Kohinggo as represented by the persons (hereinafter referred to as “the Representatives”) identified by the Roviana Area Council (hereinafter referred to as “the RAC”) in its determination of 17th June 1993. On 18th April 1997, the licence of the first Plaintiff was extended to cover West Kohinggo (see Exhibit “MB4” annexed to the affidavit of Marvin Baekisapa). The concession area is more clearly delineated in a sketch map annexed as “MB6” to the affidavit of Marvin Baekisapa. The Plaintiffs rely on that Agreement and the extension to the Timber Licence of 18th April 1997 as giving them the right to enter, fell and extract logs from West Kohinggo. Logging operations commenced on or about November 1997.
The Defence and Counter-Claim of the Defendants
The Defendants are members of the Eapa, Gaso and Igolo tribes who own the customary land situated west of Kohinggo Island, more commonly referred to as West Kohinggo. They deny the validity of the Agreement on the grounds inter alia, that the requirements of the Forest Resources and Timber Utilisation Act (Cap. 40) (hereinafter referred to as “the Forest Act”) had not been complied with. To that extent, they say the licence issued in favour of the first Plaintiffs should also be invalidated. They say the Plaintiffs have trespassed into their customary lands and felled and removed trees without right. They seek damages for trespass and conversion.
Issues for determination
A number of issues arise for determination before this court. Those issues, which arise from the Statement of Claim of the Plaintiffs, have not raised much contention. Much of the evidence, which relate to these are not contested. The Defendants do not deny for instance that they physically and unlawfully removed the Goods of the Plaintiff. They say however that because the Plaintiffs were trespassers on their customary land they ought to pay them compensation for the damage done to their land before the Goods would be released. It seems that the Goods removed were taken as some sort of charge against the Plaintiffs for the “unlawful entry” into their customary lands and removal of their trees.
The issues of contention, which arise for determination by this court, stem from the counter-claim of the Defendants. Of significance is the challenge to the validity of the Agreement, and the Timber Licence as extended on 18th April 1997 (hereinafter referred to as “the Amended Licence”). The Plaintiffs rely on a number of grounds, which they say affect the validity of the Agreement. I will deal with those grounds in the order in which Mr. Ashley has raised them in his written submissions filed 7th October 2002.
1. Was a timber rights hearing convened on 15th – 17th June 1993? The Plaintiffs say that a timber rights hearing was held by the RAC at Munda from 15 – 17 June 1993 in which five representatives of the landowning tribes were identified as the persons lawfully entitled to grant timber rights over West Kohinggo customary land. These were David Pati, Steward Evo, Bruce Pita, Silas Pati and Thompson Turueke (“the Representatives”) (see records of the minutes of the RAC as contained in “Exhibit 18”).
The Defendants on the other hand deny that such a hearing ever took place but if it did, it was invalid for a number of reasons.
I have carefully considered the evidence over the issue on whether a timber rights hearing was convened from 15th – 17th June 1993. My firm conclusion is that such a hearing did take place. Both the oral evidence of witnesses called in support and in opposition and the documentary evidence adduced in support confirm this. The documentary evidence adduced for instance is quite clear. Exhibit 18, which is the minutes of the RAC, contained clear details of the proceedings of the hearing of 15 – 17 June 1993. It contained details not only of those who spoke in favour of the first Plaintiff’s application, David Pati, Steward Evo and Samuel Todono, but also of those who spoke against the application including Timothy Koete (“Koete”). Pages 5 and 6 of the minutes contain details of the objections of Koete. In his oral evidence before this court, he did not deny that he was present at the hearing.
Pages 8 and 9 of the minutes contain the determination of the RAC. I quote:
“Pursuant to Section 5 c (3)(a)(b) of the Forestry Resources and Timber Utilisation (Amm) Act 1991, the Roviana Area Council after having heard all evidences presented by both parties and having had received collective views of each member regard the evidences is being satisfied and finally come out with this determination:
1: That Persons represent all persons lawfully entitled to grant Timber Rights in West Kohinggo between the Galugalu and Madamadara (marked ‘A’) on the attached map are:
They wish to grant Timber Rights in that particular Land Area bounded in Red.”
Exhibit 2 is the Form II Notice to the Public dated 17th June 1993, which informed members of the Public of their rights to appeal to the Customary Land Appeal Court having jurisdiction for the area in which the customary land is situated. Also attached as part of Exhibit 2 are copies of the Certificate of Customary Ownership and the map of the concession area. Exhibit 3 is a copy of a letter of withdrawal of an appeal purportedly made by Koete. Exhibit 4 is also a copy of a letter of joint withdrawal of an appeal by E. F. Pitubangara and Francis Tena Boti.
When all the evidence is considered, I am left with no doubt in my mind that a timber rights hearing was convened on 15th – 17th June 1993 pursuant to the provisions of the Forest Act.
2. Did the RAC consult with the Western Provincial Government? Section 8(3) of the Forest Act says that “the area council shall in consultation with the appropriate Government (in this case the Western Provincial Executive Government) discuss and determine with the customary landowners and the applicant matters relating to - ” the matters specified in paragraphs (a) to (e). Mr. Ashley for the Defendants submits that the Agreement should be invalidated in that the RAC failed to consult with the Western Provincial Executive Government (hereinafter referred to as “the Province”) as required by the said Act. He says no representative of the Provincel was present at that timber rights meeting. This showed that no consultation occurred with the RAC.
Section 8(1) of the Forest Act reads:
“Upon receipt of a copy of the application forwarded to it under section 7, the area council shall fix a place within the area of its authority and a date, not being earlier than two months, or later than three months, from the date of receipt of the copy of the application for a meeting to be held with the appropriate Government, the customary landowners and the applicant to determine the matters specified in subsection (3).”
Subsection 8(3) is consistent with the requirement stipulated in section 8(1) that someone from the Province is present at the meeting for purposes of consultation by the RAC. The records did show that no one from the Province was present at the said meeting. This is a clear violation of the requirement set out in section 8(1) and (3), that someone from the Province is present at such a meeting. I do note however that apart from the issue of determining the level of participation of the Province in the venture of the applicant [paragraph 8(3)(e)], it does appear that the presence of such a person at such meeting would be more of a formality than anything else.
3.1 Did the RAC discuss and determine with the landowners matters pertaining to paragraph 8(3)(a)? Section 8(3)(a) requires the RAC to consult with the Province to discuss and determine with the customary landowners and the applicant matters relating to whether or not the landowners were willing to negotiate for the disposal of their timber rights to the applicant. Mr. Ashley submits that there is no evidence of any discussions having been conducted with the landowners. Unfortunately this submission is misconceived. The reason why the meeting was convened on 15th – 17th June 1993 was for the very purpose inter alia of discussing and determining with the landowners this very issue as to whether or not they were willing to negotiate for the disposal of their timber rights. The records of the minute of the RAC (Exhibit 18) showed clearly that the landowners were given opportunity and were heard at the meeting.
3.2 Rights of the RAC to make determination where no agreement on the part of the landowners. Mr. Ashley submits that there was no agreement between the landowners and therefore the RAC should have terminated the meeting without making any determination. Unfortunately this submission is also misconceived. Whilst it is conceded that there was no dispute that the tribes which owned the customary land at West Kohinggo were the Eapa, Gaso and Igolo tribes, the timber rights hearing was convened for the very purpose of determining whether the persons (Thompson Turueke, David Pati, Steward Evo and Samuel Todono) proposing to grant timber rights were the persons and represent all the persons lawfully entitled to grant such rights. After hearing the submissions of all persons present including the objections of Koete, the RAC had determined that the lawful representatives of the Eapa, Gaso and Igolo Tribes were David Pati, Steward Evo, Bruce Pita, Silas Pati and Thompson Turueke (the Representatives). So whilst there was disagreement by some members (notably that of Koete) of the Eapa, Gaso and Igolo tribes, that did not affect the fact that the RAC had identified who their representatives were in custom and that those persons did not object the application of the first Plaintiff to carry out logging in their customary land. It is erroneous therefore to suggest that because there was disagreement by some landowners on the issue of logging that the matter should have been put to rest there and then. The proper course of action, which Koete ought to have taken, would have been to appeal that determination to the Western Customary Land Appeal Court. In the alternative he should have considered commencing a customary land dispute before the Chiefs Committee under the Local Courts Act. He did not do either.
4. Failure to discuss and determine with the customary landowners and applicant matters relating to the sharing of the profit in the venture with the landowners and the participation of the appropriate Government in the venture of the applicant. Section 8(3)(d) and (e) requires the participation of the landowners and the Province in determining the share of profits of the landowners and the level of participation of the Province. Mr. Ashley submits there was no discussion and determination on this. He points out there was no record in the minutes of any such discussion or determination. I do note though that until the identity of the landowners’ representatives are known any meaningful discussion on such matters would be difficult.
5. Failure to give notice of the date of determination by the RAC. Mr. Ashley submits that the RAC failed to give notice of its determination to interested parties. Unfortunately the records of the minutes of that timber rights hearing reveal that the determination was given straight after the timber rights hearing on 17th June 1993. Those records showed that the hearing was conducted over a period of three days from 15th to 17th June 1993 and the determination given straight after on 17th June 1993. No suggestion has been made that the persons present at the meeting were never made aware of the date of determination. The only exception would have been if a person had left the meeting earlier. In such case, unless that person had made arrangements with others to receive the determination on his behalf, he or she would not have been aware of the determination. This appears to be the case with Koete who left after the first day of hearing. He could not have been aware therefore of the date of determination when it was announced. As a person who was present at the hearing and had an interest in the outcome of the hearing from the outset, he should have made enquiries to find out about the date of determination.
6. Discrepancy in the list of names of the Councillors in the Form II Notice. Mr. Ashley points to an apparent discrepancy in the list of the names of Councillors contained in the records of the Minutes (Exhibit 18) as opposed to the Form II Notice (Exhibit 2). Whilst the discrepancy is noted, I fail to see any significance in this. I note that the Form II Notice displayed had space for only five names. It seems this could very well explain why only five names were inserted leaving out other names for lack of space. There is no evidence to suggest that the omission was fraudulent or deliberate with intent to mislead anyone.
7. Failure to include a second schedule with the Form II Notice. The standard Form II Notice refers to a second schedule that should contain details of the rights, which may not be granted by the Representatives in respect of West Kohinggo land. The Form II Notice issued in respect of West Kohinggo land did not contain any second schedule. Mr. Ashley submits the Notice therefore is defective. Unfortunately this overlooks the fact that this is not a mandatory requirement, the omission of which renders the Form II Notice defective and a nullity. If a second schedule was not included, then it either meant that it was not relevant or applicable to the circumstances of this particular case. In the circumstances I am not satisfied that this omission was material and that it affected the validity of the notice.
8. Publication of notice of determination within the area of the parties. Section 9(2)(b) of the Forest Act requires publication of the notice of determination to be made “in a manner the area council considers most effective, to persons who reside within such area and appear to have an interest in the land, trees or timber in question.” It does appear that the determination of the RAC was not published in any other place. Little evidence has been adduced to show that this requirement was also complied with.
9. Failure to enter into negotiations with landowners. Schedule I to Form 4 of the Forest Resources and Timber (Prescribed Forms) Regulations require Negotiations to take place between the landowners and the applicant company before any standard logging agreement is signed. Mr. Ashley submits this was not complied with.
Paragraph 4 of Schedule I headed “Negotiations” is meticulous and couched in mandatory language. As observed by the Court of Appeal in Gandly Simbe v. East Choiseul Area Council and Eagon Resources Dev. Company Limited and Others[1] (hereinafter referred to as “Gandly Simbe’s Case”) at page 9, “many of the statutory requirements obviously contain a strong element of social and economic purpose aimed at protecting customary landowners and the environment from undue exploitation.” The first Plaintiff thus is obliged to comply with those requirements.
Sub-paragraph 4(a) required copies of the 5 years plan and road plan to be made available to each land holding group before negotiations for any particular area was to commence. Very little evidence has been adduced to show whether this requirement was actually complied with or not. The only evidence, which came out was that the first Plaintiff did submit a logging plan and map (Exhibit 19) to the Commissioner of Forests for approval but there is no evidence to suggest that this was ever made available to each landholding group before it was sent off for approval. On the balance of probability, I am not satisfied this requirement was complied with.
Further, sub-paragraphs (c) and (d) of paragraph 4 require notices and maps to be published at least 2 months before the time and date for the agreement to be negotiated and for the negotiation to occur in public in the presence of the legal advisor of the landowners, representatives of the Province and Forestry Division. Again there is no evidence to suggest that this requirement was ever complied with though the timber rights agreement was signed on 13th September 1996.
10. Inconsistencies in the standard logging agreement. Learned Counsel Ashley has also highlighted a number of inconsistencies in the Agreement itself, which he submits would also result in the invalidation of the said timber rights agreement.
(i). Failure to attach “Appendix I” referred to in the recital to the timber rights agreement dated 13th September 1996 (hereinafter referred to as “the Agreement”). Appendix I was supposed to contain the names of the landowners identified as having the rights to grant timber rights over “Kohinggo West of Ghalughalu and Madamadara”. A closer look at the Agreement however revealed that whilst Appendix I was not attached, the Agreement nevertheless had been signed on behalf of the landowners by none other than the persons that had been duly identified by the RAC as having the authority to grant timber rights. In the circumstances an attachment in the form of Appendix I would have been superfluous. The reference to Appendix I should have been deleted.
(ii) Failure to attach map to the Agreement. The second inconsistency raised by Mr. Ashley was the fact that no map had been annexed to the Agreement as prescribed in Form 4. The prescribed Form 4 required a map in the plan scale of 1:50,000 to be attached to the Agreement. Unfortunately there is no evidence that any such map was attached though I note that in the Form II Notice a map of the logging area was attached. Whether or not this was the same map provided for the Agreement is uncertain. It is possible this may have been a mere oversight.
(iii). Failing to commence logging within the time limit of six months. Clause 2 of the Agreement had stipulated that logging operations were to commence within six months (by 13th March 1997) of date of the Agreement. The evidence adduced revealed that logging operations did not commence until November 1997, some eight months later.
Clause 2 of the Agreement expressly provided that “The Company shall commence logging operations ... not later than six months in default of which this agreement shall become null and void.”
It is important to keep in mind that the execution and approval of a timber agreement is a prerequisite to the issue of a timber licence. A timber agreement however could not be implemented without the issue of a licence. The evidence adduced before this court revealed that the timber licence of the first Plaintiff was extended to cover West Kohinggo only on 18th April 1997, a month after the six months period stipulated in the Agreement had lapsed. This meant that the first Plaintiff could not have complied with the six months period to 13th March 1997 specified in the Agreement, even if they had wanted to. Unfortunately this time limit set in the Agreement was never amended or extended. This meant that the Agreement became null and void by default as of 13th March 1997. In order for it to be re-activated, it needed to be varied, amended or renewed. There is no evidence to suggest that the said Agreement was ever varied, amended or renewed and accordingly by process of default it became null and void.
(iv). Failure to execute a completion certificate. The Defendants also allege that the Agreement was defective in so far as the first Plaintiff had failed to execute a completion certificate consistent with Schedule C to Form 4 as stipulated by clause 3 of the Agreement. The evidence adduced revealed that whilst the logging operations had long ceased no completion certificate had ever been completed. Schedule C imposes mandatory requirements on the company (first Plaintiff) to complete at the close of logging operations. For instance, paragraph (1) requires all streams and watercourses to be cleared of all obstructions etc (minimizing environmental damage). Paragraph (2) requires all skidding tracks on slopes to be dammed and drains led off at frequent intervals. Paragraph (3) required all yards and working areas to be repaired. Paragraph (4) required all felled merchantable timber to be extracted and paid for (dealing with wastage of logs). Paragraph 5 required a general clean up of all oil, chemical and similar pollutants and rubbish from the site. Paragraph (6) also addressed environmental matters such as quarries, pits and gravel extraction areas to be restored to an acceptable condition and areas of stagnant water to be filled or drained off. Paragraph (7) requires a thorough final maintenance of all roads and bridges in the area and that materials for future repairs and maintenance had been left for use. And paragraph (8) deals with payment of all royalties, penalties and compensation claims.
Taking all these requirements into account, it is obvious that the failure of the first Plaintiff to attend to them cannot by any means be regarded as a minor omission or one that can be easily overlooked. It is also a substantial omission and which in my respectful view constitutes a major departure from the requirements stipulated by the Forest Act.
(v). Failure to attach Schedules A and B regarding road construction. Mr. Ashley submits that whilst there was a reference in Clause 10 of the Agreement to the attachment of Schedules A and B, these were not attached to the Agreement. Unfortunately I am not satisfied this amounts to a material omission. Their inclusion in clause 10 would have been sufficient to bind the parties to the Agreement. The fact that they had not been attached in my respectful view is more of an inadvertent omission than anything else. It would not have affected the obligations of the parties as stipulated in clause 10.
(vi). Failure to attach Schedule C regarding road maintenance. Clause 3 and 12 of the Agreement not only require the attachment of Schedule C to Form 4 to be attached to the Agreement but that it be completed when logging activities had ceased. This was not done. The non-compliance also amounts to a fundamental departure from the requirements of the legislation.
(vii). Failure to attach Schedule D regarding bridges construction. The failure to attach Schedule D to the Agreement in my respectful view is not fatal, as Clause 13 of the Agreement had incorporated this Schedule into the Agreement.
(viii). Failure to attach Schedule G and H regarding logging practice. The failure to attach Schedules G and H is not fatal to this Agreement. They have been incorporated into the Agreement in any event under clause 16 and therefore binding on the parties.
(ix). Failure to make reference in clause 21 of the Agreement to clause 34. Clause 21 of the Agreement should have made reference to clause 34 instead of a reference to clause 38 which did not exist. In my respectful view, that was a typological error, which can be cured by the provisions of s. 53 of the Interpretation and General Provisions Act 1978.
(x). Failure to provide for “wages and conditions for labourers”. Clause 29 of the prescribed Form 4, which deals with the wages and conditions of labourers, had been omitted from the Agreement. That was a clear breach of the requirement spelled out in the legislation.
Paragraph 3 of Schedule I did not include Clause 29 as one of the clauses which was negotiable. Further, the said Schedule did not permit any of the clauses including those, which may be negotiable to be deleted. I quote:
“All agreements between the Co. and landowners shall be made on the approved standard agreement form ....................to be specified in the Licence, with such additions or amendments to the negotiable conditions as the two sides shall agree. All clauses must be completed and none may be deleted. Clauses open to negotiation are: 18 Exclusion of species, 21 Reafforestation, 29 Wages & Conditions, 31 Royalty (percentage only, new method of assessment) 34 Method of Payment.” [Emphasis added]
The first Plaintiff had no right to omit clause 29 of the prescribed Form. I am satisfied this amounts to a material omission in the Agreement.
(xi) Failure to attach Schedule E regarding compensation for damages to crops. The omission is immaterial in that although the schedule was not attached, clear reference is made to it in clause 29 of the Agreement.
(xii) Exclusion of Schedule F from clause 30 in the Agreement. Clause 31 in the prescribed Form 4 provides inter alia for the calculation of the payment of royalty to landowners to be calculated in accordance with the formula set out in schedule F. Schedule F provides inter alia that:
“The rate of royalty payable to the Company to landowners shall be calculated monthly in relation to average sale price, ....
The rate of royalty shall be a percentage of the average sale price.
The basic rate of royalty shall be 12½ percent when the average sale price amounts to S.I. $150 per cubic metre.”
According to the prescribed rates the average rate of royalty at a price of $150 is $18.75 per cubic metre ($150 x 12½ % = $18.75). The maximum of 17.5% at a price of $162.50 would come to $28.44 per cubic metre. The prescribed price range therefore starting from the medium average to the maximum is $18.75 per cubic metre to $28.44 per cubic metre. The first Plaintiff however has offered the landowners a rate of $50.00 per cubic metre, which is well above the prescribed maximum rate. I fail to see how this could ever be described as inconsistent with the requirements spelled out in Form 4.
(xiii) Amendment of clause 31. Clause 31 of Form 4 requires monthly statements to be provided by the first Plaintiff. This was amended so that first Plaintiff only provides statements on shipment basis instead of on monthly basis. It is obvious this was done on a practical basis. It seems that Clause 31 was enacted on the assumption that log exports were going to be done on a monthly basis. Unfortunately that was not the case. I am not satisfied the omission is significant.
(xiv) Omission of clauses 33 and 34 of Form 4. Clause 33 of the prescribed Form 4 provides for the sales of timber to be at arms length where possible and for comparative prices to be obtained from reputable timber agents. This was omitted from the Agreement. This too is a material omission.
The same can be said of Clause 34 of Form 4, which sets out the method of payment to be done to landowners. This was also omitted contrary to legislation.
(xv) Amendment of clause 35 of Form 4. Clause 35 of Form 4 prescribes the manner in which logs are to be measured and graded. Details of how this is to be done are set out in Schedules G and H of Form 4. Whilst Clause 32 of the Agreement did deal with the issue of measurement and grading of logs, unfortunately it was amended without including Schedules G and H. This with respect amounts to a material amendment, which was unauthorized and is a clear departure from what, was prescribed in Form 4.
(xvi) Omission of an arbitration clause. Clause 37 of Form 4 deals with the question of arbitration. I am satisfied this was omitted from the Agreement.
(xvii) Amendment of termination clause. Clause 38 of Form 4 deals with the question of termination of the timber agreement. The statutory period provided is one month’s notice. Clause 34 of the Agreement however provided for a six months notice contrary to what was prescribed.
The effect of the inconsistencies
Section 44 of the Forest Act allows the Minister to make regulations for the better carrying out of the provisions and purposes of the Act including “(a) provide for the forms of licences and permits to be issued under this Act, the procedure for the issue of such licences and the terms and the conditions to which they may be subject;”. Regulation 5 of the Forest Resources and Timber (Prescribed Forms) Regulations provides that the form and content of a timber rights agreement is to be as that set out in Form 4. I quote:
“An agreement for the sale of timber rights in customary land shall be in the Form 4 in the Schedule hereto.”
Form 4 of the Schedule contains a series of some 39 clauses, which spell out in considerable detail the format of a timber rights agreement and the terms to be incorporated therein. Another Schedule designated Schedule I, further expounds on the form and manner of the agreement to be made with the landowners (see Paragraph 3 to Schedule I). I have alluded to this in this judgement.
The Court of Appeal in Gandly Simbe’s Case at page 11 made some important observations on this paragraph:
“From this it will be seen that para. (3) of Schedule I requires all clauses to be completed and that it distinguishes between terms that are, and those that are not, “open to negotiation”. Plainly what is intended is that, with the exception of those specified, other clauses in the Schedule are not capable of variation by agreement.” [Emphasis added]
As to the legal effect of any inconsistencies, the Court of Appeal observed as follows (page 12):
“Several questions arise. The first concerns the legal effect of the departures or variations from the prescribed Form 4 and associated regulations. The consequence of failing to comply with the provisions of the Form and Regulations is not expressly stated in the Act or Regulations; but it can scarcely be doubted that it results in the invalidity of the timber agreement.” [Emphasis added]
Section 11(c) of the Forest Act gives power to the Commissioner of Forests to make recommendation to the appropriate Provincial Government to grant approval to a logging agreement after satisfying himself that the various requirements stipulated in the legislation had been complied with.
Section 11(c) reads:
“On receipt of the certificate issued under section 9 and on being satisfied that –
......
(c) the agreement for the granting of the timber rights referred to in such certificate has been duly completed in the prescribed form and manner and that the parties to, and the terms and provisions of, such agreement accord with such certificate or, where there has been an appeal under section 10 with the order of the court determining such appeal,
the Commissioner shall recommend to the appropriate Government to grant approval to such agreement.” [Emphasis added]
In Gandly Simbe (ibid) the Court of Appeal pointed out in page 9 that:
“...many of the statutory requirements obviously contain a strong element of social and economic purpose aimed at protecting customary landowners and the environment from undue exploitation.”
Compliance with those statutory requirements was mandatory for the company intending to carry out logging operations on customary land.
The Commissioner of Forests administers the Forest Act. He plays a vital role in ensuring inter alia that licence holders and logging operators in the country comply with the objectives of the Act and its requirements. One of the more important statutory functions that he performs is that spelled out in Section 11(c) of the Forest Act. Section 11(c) requires him to be satisfied with the agreement that it has been duly completed in the prescribed form and manner. This means that he has to vet every logging agreement that comes through his office with care. He cannot afford to be complacent because when he fails to discharge his duty as imposed upon him under the Forest Act he opens himself up to be criticized for dereliction of duty as well as permitting a licence holder or logging operator to enter customary land without right. If an agreement does not meet the statutory requirements spelled out by the Act, he has duty to reject it where the parties refuse to amend or vary the agreement. He can only make recommendation for its approval where he is satisfied it has complied.
In the circumstances of this case, sad to say, he has failed to carry out his duties properly and made recommendations, which he ought not to have made, resulting in the improper approval of the Agreement and an unlawful extension of the Timber Licence of the first Plaintiff into West Kohinggo.
The inconsistencies noted must necessarily result in the invalidation of the Agreement and the subsequent invalidation of the extension made to the Timber Licence over West Kohinggo.
Counter-Claim of the Defendants
The Defendants seek inter alia damages for trespass and damages for loss (conversion) of the trees felled and exported in seven shipments detailed in paragraph 19 of the Counter-Claim.
It is not in dispute that the owners of the customary land in West Kohinggo vest in three tribes jointly, the Eapa, Gaso and Igolo tribes. It is also not in dispute that their representatives had already been identified as per the determination of the RAC of 17th June 1993. Before a valid licence can be issued, it was crucial that a valid timber rights agreement be obtained. In view of the fact that the Agreement purportedly executed by the representatives was invalid, any entry and subsequent felling and removal of trees from West Kohinggo cannot be justified in law and must amount to a clear trespass and conversion of trees.
The first and second Plaintiffs must bear equal responsibility for the trespass and conversion as both parties ought to have checked the Agreement carefully before commencing any logging operation. Ignorance of the law is no defence. Damages therefore must be at large for trespass and for conversion of trees.
Plaintiff’s claim
As to the Plaintiff’s claim, the evidence on this has been overwhelming. There has been little dispute to the fact that the items listed in the Statement of Claim of the Plaintiffs in paragraph 15 had been proven to the required standard, that is on the balance of probabilities. The Defendants do not dispute that the items were removed. Initially they were removed and held against their claims of compensation against the company for trespassing onto their customary lands but that over time, their whereabouts cannot now be ascertained. The fact the Plaintiffs may have been trespassing on the customary land of the Defendants does not give them right to take the property of the second Plaintiffs. I am satisfied the claim of the Plaintiffs must be allowed.
ORDERS OF THE COURT:
THE COURT.
[1] CAC No. 8 of 1997 judgment delivered 21st October 1998
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